ARI SHAPIRO, HOST:
Sanitation - the fact that the Centers for Disease Control and Prevention's mask mandate on planes, trains and buses ended earlier this month - well, it came down in part to an interpretation of that word - sanitation.
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UNIDENTIFIED REPORTER #1: In a statement, the CDC defended the mask mandate, saying...
SHAPIRO: U.S. District Judge Kathryn Kimball Mizelle voided the mask requirement for all public transit. She cited a law that gives the CDC power to stop the spread of communicable diseases through measures like inspection, fumigation, disinfection and sanitation.
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SHAPIRO: But according to Lawrence Gostin, a professor of public health law at Georgetown...
LAWRENCE GOSTIN: She looked at the dictionary definition of sanitation, and that didn't include masks. And that was the court's reasoning.
SHAPIRO: The Biden administration is appealing the decision.
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UNIDENTIFIED REPORTER #2: Although it's not clear if the mandate would be immediately reinstated if the government wins that appeal.
SHAPIRO: It's not the first blow to a pandemic-era CDC rule. Last August, the Supreme Court struck down its order that extended a moratorium on evictions. Lindsay Wiley, a health law professor at UCLA, said the eviction ban was a bit of a stretch for the CDC.
LINDSAY WILEY: A lot of the general public and a lot of federal judges feel like, you know, this isn't exactly what the CDC's role should be. This is something state and local governments are doing, and it should really be left to them.
SHAPIRO: Now, to understand what the CDC's authority actually is, you have to go back to 1944. That's when the U.S. passed the Public Health Service Act, the law cited by the Biden administration and Judge Mizelle for the mask mandate.
GOSTIN: This is a law created in 1944 that gave the Public Health Service - because CDC wasn't even created then - the ability to prevent the interstate or international transmission of an infectious disease.
SHAPIRO: Gostin says the country was still thinking of the 1918 flu pandemic.
GOSTIN: They realized that infectious diseases were one of the most serious threats, and they also realized that states acting alone, you know, can't prevent the spread of an infectious disease. So it gave the Public Health Service that power. And soon after the CDC was created, that power was then delegated to the CDC.
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SHAPIRO: CONSIDER THIS - during the COVID-19 pandemic, the CDC has used the powers granted by a long-standing law to issue broad public health orders. Now that those orders are being overturned, what could the agency's authority look like in the future?
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SHAPIRO: From NPR, I'm Ari Shapiro. It's Thursday, April 28.
It's CONSIDER THIS FROM NPR. Health law professor Lawrence Gostin says the Public Health Service Act does not specifically mention masks.
GOSTIN: But it wouldn't mention masks because a Congress at any given time can't predict what future crises will be.
SHAPIRO: And he doesn't agree with Judge Mizelle's focus on the definition of sanitation as a basis for ending the mask mandate.
GOSTIN: In 1944 - in fact, throughout America's history, you know, certainly throughout the 19th and 20th century, the term sanitation had a particular meaning. And it was a meaning of hygiene, public health. It had a very broad understanding.
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SHAPIRO: If the judge's interpretation that Congress never authorized the CDC to require masks in a pandemic is upheld on appeal, Gostin thinks it could have an impact on the country's ability to respond in future health crises.
GOSTIN: I think it would really handcuff the CDC when the next health crisis hits. And if the CDC is handcuffed, we're not going to get the protection we need and deserve as a nation.
SHAPIRO: I asked Gostin if there was much debate over what the federal government's authority should be back when the Public Health Service Act was first introduced in the 1940s.
GOSTIN: No. You know, I think that there was, you know, a very strong national agreement, Republicans and Democrats alike, that we needed a strong public health agency and that while most public health powers do reside at the state and local level, what a state or a city can't do is prevent the spread of diseases across the United States or, in fact, coming from abroad to our nation's borders. And I think that, you know, that's why the Public Health Service Act gave the federal government, you know, very, very broad powers to prevent the introduction into the United States and the transmission of an infectious disease across the United States to do anything it deems necessary to protect America against the interstate or international spread of a dangerous infectious disease. And, of course, by definition, COVID-19 meets that standard.
SHAPIRO: You believe that the judge misinterpreted this law. Do you also believe that the law, which was passed in 1944, needs updating? Is it out of step with the times? Does it fall short in some ways?
GOSTIN: Yeah. I mean, that's a good question. And I've been, you know, on a National Academy of Sciences committee reviewing exactly that. So, you know, the answer to that is yes, I would like to see the CDC's regulatory powers modernized and that we should learn the lessons from COVID-19.
SHAPIRO: Modernized can mean so many things. What does that mean in the way that you're using it?
GOSTIN: You know, what it means is that we give CDC all the powers explicitly that it will need in the next health crisis. If you think about the air travel mask mandate, it's an almost quintessential power that the CDC should have because you've got somebody, you know, boarding a flight in New York City and flying to Los Angeles. There's no state that can protect us.
SHAPIRO: And so that's where would you draw the line between that kind of a policy and something like the policy in Shanghai that says, you know, people can't leave their houses at all if there's a COVID outbreak or something like that.
GOSTIN: Absolutely. I don't - I do not believe that CDC should have the power to reach into a state, regulate an individual, regulate a business so long as that state itself has the authority to do it. But what no state can do is prevent me from going from, you know, New York to New Jersey or from New Jersey to California. And that's why we need a national public health agency, and I do think we should be modernized. You know, I want to see a federal agency that's, you know, strong, powerful, decisive, uses science and protects us where states can't.
SHAPIRO: Lawrence Gostin, university professor of global health law at Georgetown and director of the World Health Organization's Collaborating Center on National and Global Health Law.
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SHAPIRO: It's CONSIDER THIS FROM NPR. I'm Ari Shapiro.
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